India

General

Official Country Name

Geographical Region

Death Penalty Law Status

Methods of Execution

Hanging.Hanging is the method of execution in the civilian court system, according to the Indian Criminal Procedure Code. [4] Under the 1950 Army Act, hanging as well as shooting are both listed as official methods of execution in the military court-martial system. [5]

Shooting.Under the 1950 Army Act, hanging as well as shooting are both listed as official methods of execution in the military court-martial system. [6]

Country Details

Language(s)

Population

Number of Individuals Currently Under Sentence of Death

At least 477.

According to a December 13, 2012 report, 477 people were on death row in India. [9]

Based on the official statistics of the National Crimes Records Bureau, between 2001 and 2011, an average of 132 death sentences were handed down each year. [10] However, the Supreme Court confirms barely 3 to 4 death sentences each year. [11]

Executions in 2011

Per capita execution rate in 2011

Executions in 2010

Executions in 2009

Executions in 2008

Executions in 2007

Year of Last Known Execution

2013. [21] The last two executions to take place in India were the February 8, 2013 hanging of Muhammad Afzal, convicted of plotting the 2001 attack on India’s Parliament, and the hanging of 2008 Mumbai attack gunman Mohammad Ajmal Amir Qasab on November 21, 2012. [22] Prior to these hangings, the last execution in India had taken place in 2004, when Dhananjoy Chatterjee was executed by hanging for the murder and rape of a 14-year old girl. This, in turn, was the country’s first execution since 1995. [23]

Crimes and Offenders Punishable By Death

Crimes Punishable by Death

Aggravated Murder.Murder is punishable by death under Article 302 of the Penal Code, [24] and in Bachan Singh v. State of Punjab, India's Supreme Court held that the death penalty was constitutional only when applied as an exceptional penalty in ”the rarest of the rare” cases. [25]

Other Offenses Resulting in Death.According to the Penal Code, if any member of a group commits murder in the course of committing an armed robbery, all members of the group can be sentenced to death. [26] Kidnapping for ransom in which the victim is killed is punishable by the death penalty. [27] Being a member of an association or promoting an association while committing any act using unlicensed firearms or explosives that results in death, is punishable by death. [28] Engaging in organized crime, if it results in death, is punishable by death. [29] Committing, or assisting another person in committing sati – the burning or burying alive of widows or women – is also punishable by the death penalty. [30] Under the Prevention of Atrocities Act, bearing false witness in a capital case against a member of a scheduled caste or tribe, resulting in that person's conviction and execution, carries the death penalty. [31] Assisting individuals who are under the age of 18, mentally ill, mentally disabled, or intoxicated in committing suicide is punishable by the death penalty. [32]

However, whether (or when) these offenses are death-eligible must be considered in the light of the Indian Supreme Court’s decision in Bachan Singh. Courts may interpret Bachan Singh as overriding other law when sentencing for offenses resulting in death. For instance, using, carrying, manufacturing, selling, transferring, or testing [33] prohibited arms or ammunition previously carried a mandatory death sentence if it resulted in the death of any other person under the Indian Arms Act, 1959. [34] However, a recent Supreme Court ruling in February 2012 ruled this provision unconstitutional in light of the judgments in Bachan Singh v. State of Punjab and Mithu v. State of Punjab. [35] This suggests that offenses resulting in death are punishable by death only when they meet the “rarest of rare” standard laid out in Bachan Singh.

Terrorism-Related Offenses Not Resulting in Death.Using any special category explosive to cause an explosion likely to endanger life or cause serious damage to property is punishable by the death penalty. [37]

Rape Not Resulting in Death.Under the Criminal Law (Amendment) Act, 2013, a person who in the course of a sexual assault inflicts injury that causes the victim to die or to be left in a “persistent vegetative state” is punishable by death. Repeat offenders of gang rape are also punishable by death. [38]

Kidnapping Not Resulting in Death.Kidnapping or detaining an individual is punishable by death if the kidnapper threatens to kill or harm the victim, if the kidnapper’s conduct makes the death or harm of the victim a possibility, or if the victim is actually harmed. [39]

Drug Trafficking Not Resulting in Death.If an individual who has been convicted of the commission of, attempt to commit, abetment of, or criminal conspiracy to commit any one of a range of offenses related to drug trafficking (e.g. trafficking of cannabis and opium) commits another offense related to the production, manufacture, trafficking, or financing of certain types and quantities of narcotic and psychotropic substances, he or she can be sentenced to death. [40]

Treason.Waging or attempting to wage war against the government [41] and assisting officers, soldiers, or members of the Navy, Army, or Air Forces in committing mutiny are punishable by the death penalty. [42]

Military Offenses Not Resulting in Death.The following offenses, if committed by a member of the Army, Navy, or Air Forces, are punishable by death: committing, inciting, conspiring to commit, or failing to suppress mutiny; [44] desertion or aiding desertion; [45] cowardice; treacherous acts; committing or inciting dereliction of duty; aiding the enemy; inducing individuals subject to military law not to act against the enemy; imperiling Indian or allied military, air, or naval forces in any way. [46]

Other Offenses Not Resulting in Death.- Being a party to a criminal conspiracy to commit a capital offence is punishable by death. [47]
- Attempts to murder by those sentenced to life imprisonment are punishable by death if the attempt results in harm to the victim. [48]
- Calumniation: Providing false evidence with intent or knowledge of the likelihood that another individual, or a member of a Scheduled Caste or Tribe, would be convicted of a capital offense due to such evidence [49] carries the death penalty if it results in the conviction and execution of an innocent person. [50]

Does the country have a mandatory death penalty?

No. In Mithu v. State of Punjab, the Supreme Court ruled that the mandatory death penalty is unconstitutional. [51] While subsequent legislation for drug and atrocity offenses prescribes the mandatory death penalty, and the Supreme Court has not expressly struck down the penalty as unconstitutional, Indian courts have not applied the mandatory death penalty for these crimes. [52] Additionally, a line of cases since the 1980 case of Bachan Singh v. State of Punjab, [53] in which the Court held that the death penalty should only be applied for the most heinous offenses (“the rarest of the rare”), illustrate that application of the death penalty is, while not always predictable, still highly restricted. [54]

For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?

None. In Mithu v. State of Punjab, the Supreme Court ruled that the mandatory death penalty is unconstitutional. [55] While subsequent legislation for drug and atrocity offenses prescribes the mandatory death penalty, and the Supreme Court has not expressly struck down the mandatory language as unconstitutional, Indian courts seem not to apply the mandatory death penalty for these crimes. [56]

Crimes For Which Individuals Have Been Executed Since January 2008:

Terrorism-Related Offenses Resulting in Death.On February 9, 2013, Muhammad Afzal, also known as Afzal Guru, was executed by hanging. He was convicted for the December 2001 attack on India’s Parliament, in which five gunmen armed with grenades, guns and explosives opened fire, killing nine people. [57]

On November 21, 2012, the sole-surviving gunman of the 2008 Mumbai attacks Mohammad Ajmal Amir Qasab (also spelled Kasab in some media reports) was hanged for several crimes, including waging war against India, murder and terrorist acts. [58]

Categories of Offenders Excluded From the Death Penalty:

Individuals Below Age 18 At Time of Crime.According to the Juvenile Justice (Care and Protection of Children) Act 2000, individuals who were under the age of 18 at the time of the crime cannot be executed. [59]

Pregnant Women.According to a 2009 amendment, a pregnant woman sentenced to death must be granted clemency. [60]

Mentally Retarded.According to the Indian Penal Code, individuals who were mentally ill at the time of the crime and who did not understand the nature of the act or know that the act was wrong or against the law cannot be held criminally liable. [61] This could be interpreted to exclude mentally retarded persons from the death penalty.

Mentally Ill.According to the Indian Penal Code, individuals who were mentally ill at the time of the crime and who did not understand the nature of the act or know that the act was wrong or against the law cannot be held criminally liable. [62]

Comments.Under Bachan Singh v. State of Punjab, advanced age may be a mitigating factor in sentencing, although it does not have the same exclusionary effect as youth does. [63]

Death Penalty In Law

Does the country’s constitution make reference to capital punishment?

Yes. The Constitution states that no person can be deprived of his life except through a lawful procedure. [84] The Constitution also gives the President and the Governor of a State the right to suspend, pardon, or commute death sentences. [85] Moreover, the Constitution provides that if the High Court has reversed an order of acquittal of the accused on appeal and sentenced him to death, or if it withdrew for trial any case from a lower court in which it sentenced the accused to death, then these cases will be appealed to the Supreme Court. [86] Finally, the Constitution states that the Governor can confer authority over capital cases to the relevant District or Regional Council. [87] Thus, the law explicitly states that capital punishment may be constitutional.

Does the country’s constitution make reference to international law?

Yes. The Constitution provides that India should strive to respect international law and treaty obligations. [88] While this implies India should comply with its obligations under human rights treaties, the Constitution makes no explicit reference to international human rights obligations.

Have there been any significant changes in the application of the death penalty over the last several years?

After 8 years without executions, India carried out two executions in close succession in November 2012 and February 2013. Both prisoners had been convicted of taking part in terrorist attacks. [89] The executions were carried out after President Pranab Mukherjee swiftly rejected mercy petitions, in contrast to the slow pace of his predecessors. Mukherjee’s presidency could thus mark the beginning of an accelerated pace of executions in India. [90] Moreover, the last two executions were marked by unusual secrecy: neither the prisoner’s family nor the public were informed of the President’s decision to deny clemency until after the execution had been carried out. This runs counter to prior government practice and the Right to Information Act, which requires all public authorities to inform citizens of their important decisions, including upcoming executions. After mercy petitions are rejected by the President, the prisoner and the petitioners are supposed to be informed of the decision. Once an execution date has been set, the prisoner and his relatives are to be notified. Such policies ensure that the prisoner and relatives are able to utilize judicial remedies to further stay or commute a pending execution. According to reports, Qasab, who was executed in November 2012, only learned of the date of his upcoming execution the day before it took place. Reportedly, the Union Home Minister and Maharashtra Chief Minister said that the government’s actions concerning Qasab’s execution were kept secret because they wanted to prevent further efforts by human rights activists to prevent his execution. [91] There is even more controversy surrounding the February 2013 hanging of Afzal Guru, whose family was notified of his death by letter two days after the execution had taken place. [92]

The recent executions broke with a trend of gradual abandonment of the death penalty. According to statistics, India had approximately 140 executions per year between 1954 and 1963. Between 1996 and 2000, this rate was roughly 1 execution per year; between 1998 and 2007, there was only one execution. [93] Over the last 20 years, India has continued to reduce the number of executions it has carried out. [94] In recent years, very few people have been executed.

However, the scope of the death penalty according to the law has actually expanded over time. For instance, new anti-terrorist legislation since the 1990s has included the death penalty. [95]

In early 2013, the death penalty was expanded to certain instances of rape. Following the brutal gang rape and murder of a 23-year old woman in December 2012, a wave of protests erupted throughout the country calling for harsher and swifter punishments for rape, which had previously been punished with 7 to 10 years’ imprisonment. [96] The Verma Committee, formed by the government to study legislative reforms and headed by former Chief Justice Verma, recommended enhancing the maximum sentence for rape to “the remainder of natural life,” but rejected the death penalty as a possible punishment. [97] Nevertheless, on February 3, 2013, President Pranab Mukherjee approved an ordinance under which rape is punishable by death if it leads to death or if it leaves the victim in a “persistent vegetative state.” [98] Repeat perpetrators of aggravated rape also face capital punishment under this ordinance. [99] The ordinance was strongly criticized by human rights groups for its introduction of capital punishment, its inclusion of vague and discriminatory provisions, and its grant of effective legal immunity to state security forces accused of sexual violence. [100] Despite this, the ordinance was passed into law in April 2013 as the Criminal Law (Amendment) Act, 2013. [101] A parliamentary panel’s recommendations that persons convicted for rape and murder be denied access to clemency proceedings – in contravention of India’s obligations under the ICCPR – was not included in the final law. [102]

Also in response to the December 2012 Delhi rape, several state governments proposed to lower the age for juveniles’ eligibility for punishment if convicted to as low as 16 years of age. One of the six accused in the Delhi rape is a juvenile and will escape harsher criminal punishment because of the current laws that place the bar of adult status at 18 years of age. [103] The government confirmed that it would not reduce the age of juvenile offenders before trying him. [104] If the age of juveniles is legally changed, the heinousness of crimes rather than the age of the convicted could determine punishments rendered. Thus, those persons under 18 could face the death penalty rather than the maximum of three years in a reformatory center as stipulated by the Juvenile Justice Act. [105]

The government has been called on to review the death penalty provision under Clause 3 of the proposed 2012 Piracy Bill. [106] The Parliamentary Standing Committee is concerned that a death penalty provision would deter foreign governments from cooperating in order to extradite accused pirates. [107]

There is increasing concern about the incorrect application of capital punishment law. In August 2012, several former judges called on the President to commute the sentences of 13 death row inmates who they say were wrongly sentenced per incuriam, or “out of error or ignorance.” [108]

In January and February 2014, the Indian Supreme Court emphasized the importance of the clemency process for capital inmates and commuted a total of 22 death sentences. [109] The Supreme Court reasoned that undue, inordinate, and unreasonable delay in considering mercy petitions constitutes torture. [110] The Court stated that pursuant to Article 32 of the Constitution, the Supreme Court has the power to commute death sentences into life imprisonment upon undue delay in disposal of mercy petitions. [111] The court also denounced other practices, such as executing individuals with mental illnesses and the use of solitary confinement. [112] In addition, the court determined that the government must carry out post-mortem examinations of executed prisoners to provide the courts with data on the cause of death, which will allow for consideration of whether hanging constitutes cruel and inhuman punishment. [113] In late February 2014, the Supreme Court commuted the death sentences of four inmates because the Court determined that they were not beyond reformation. [114] The decisions came at an especially important time, shortly after India carried out its first execution in 8 years.

Is there currently an official moratorium on executions within the country?

Have there been any significant published cases concerning the death penalty in national courts?

In Bachan Singh v. State of Punjab [116] , the Supreme Court of India upheld the constitutionality of the death penalty. However, the Supreme Court stated in its decision that the death penalty should only be used in the “rarest of rare” cases. [117] This case has significantly influenced subsequent jurisprudence, resulting in somewhat restricted application of the death penalty. [118] Subsequently, in Mithu v. State of Punjab, the Court determined that the mandatory death penalty is unconstitutional in India. [119] While later legislation for drug and atrocity offenses prescribes the mandatory death penalty, and the Supreme Court has not expressly struck down the language in such legislation as unconstitutional, Indian courts do not seem to apply the mandatory death penalty for these crimes. [120]

In Smt. Triveniben v. State of Gujarat (1989), the Court diminished condemned prisoners’ constitutional protections against cruel and unusual punishment due to extended stays on death row. The Court ruled that undue delay in execution of a sentence of death could be grounds for judicial commutation of the condemned’s sentence; however, delay would only be a single factor, and courts would only consider delays to which the condemned did not contribute (by filing an appeal or a petition). [121] This ruling has seriously limited the extent to which courts in India protect the rights of death sentenced prisoners to be protected from lengthy death row stays under severe or inhuman conditions, [122] although death-sentenced prisoners may technically have a right to contest their sentences if they are not executed within 5 years of sentencing. [123]

In a landmark decision, the Bombay High Court ruled on June 16, 2011 in the case India Harm Reduction Network v. Union of India that the mandatory death penalty for drug offences was “unconstitutional.” While the Court did not strike down Section 31-A of the Narcotic Drugs and Psychotropic Substances Act of 1985, it did state that the courts were no longer obligated to hand down the death penalty for repeat drug offenders under the Act. [124]

The Supreme Court ruled in Bhagwan Das Vs. State (2011) that the death penalty should be rendered as punishment in cases of “honor killings.” [125] The Court reasoned that doing so would send a clear and deterring message to those committing such crimes. “All persons who are planning to perpetuate honor killings should know that the gallows await them,” the Court said. [126] The Law Commission of India, however, disagreed with the recent uptick of death sentences handed down in honor killing cases throughout the country following the Supreme Court’s ruling. The Commission said that the death penalty should be used to punish the convicted “only in very exceptional and rare cases.” The Commission also gave recommendations of its own on how to better handle them in an August 2012 report, including a proposal of a new law that would prohibit caste assemblies that often condemn marriages that lead to honor killings. [127]

In February 2012, the Supreme Court ruled in State Of Punjab v. Dalbir Singh that the mandatory death penalty as punishment for crimes stipulated under article 27(3) of the Indian Arms Act of 1959 was unconstitutional in light of judicial review under the Constitution and the judgments in Bachan Singh v. State of Punjab and Mithu v. State of Punjab. Because the Court ruled against the law, that particular article under the Arms Act is null and void. The courts can now impose a lesser sentence. A bill to further amend the Arms Act article in question was introduced prior to the ruling in December 2011. [128] The bill is currently pending. [129]

In Shatrughan Chauhan & Another vs. Union of India & Others, the Supreme Court of India emphasized the importance of the clemency process for capital inmates. [130] The court criticized the executive for its unreasonable delay in considering mercy petitions of capital inmates on death row. The court observed that “undue, inordinate, and unreasonable delay” in carrying out death sentences causes psychological torture. [131] The court also denounced other practices, such as executing individuals with mental illnesses and the use of solitary confinement. [132] In total, the Supreme Court commuted 15 death sentences. [133] Just a month later, the Court reaffirmed the Shatrughan decision in V. Sriharan Murugan v. Union of India & Others. [134] There, the Court commuted the death sentences of three inmates because of the unreasonable delay in considering their mercy petitions, a delay of more than 11 years. It also rebuffed the argument that death row inmates had to prove actual harm occasioned by the delay in order to have their sentences commuted. [135]

Where can one locate or access judicial decisions regarding the death penalty?

The Judgment Information System of the Indian Supreme Court has an online archive of all decisions dating back to 1950. http://judis.nic.in/supremecourt/chejudis.asp. In addition, another Supreme Court Caselaw website provides access to Supreme Court decisions, but requires a subscription. http://supremecourtcaselaw.com/. Judicial opinions can also be located at http://www.indiankanoon.org/. Many court rulings are also published in law journals. [136] Bombay High Court decisions can be accessed at http://bombayhighcourt.nic.in/. Finally, Amnesty International’s 2008 report (Lethal Lottery: The Death Penalty in India, ASA/20/007/2008) delivers a comprehensive analysis of Indian Supreme Court jurisprudence on the death penalty up through its publication.

What is the clemency process?

Once the appeal process has been exhausted and the higher courts have confirmed the defendant’s death sentence, the defendant can submit petitions for mercy to the state or national executive. [137] According to the Indian Constitution, the State Governor and the President of India both have the power to suspend, pardon, or commute death sentences. [138] With the advice of their cabinets, these individuals can pardon those on death row. [139] In addition, the executive can commute the death sentence of any offender to any other punishment provided by the Penal Code without the consent of the offender. [140]

The Indian Supreme Court held in early 2014 that the executive had to consider mercy petitions within a reasonable time period. [141] The Court held that inordinate, undue, and unreasonable delay in considering mercy petitions constitutes torture in violation of Indian and international law. [142] It also went on to issue certain guidelines when considering mercy petitions. The Court stated that prisoners have a right to legal aid to prepare legal challenges to the clemency process and to be informed of the result of their mercy petition in writing. In addition, it stated that prison officials should ensure that prisoners receive regular mental health evaluations and be given “appropriate medical care.” [143]

Are jury trials provided for defendants charged with capital offenses?

Brief Description of Appellate Process

Those sentenced to death have the right to appeal both the sentence and the conviction. [145] If a case was originally tried before a Court of Session, the defendant can appeal to a High Court, and if a case was originally tried before a High Court, then the defendant can appeal to the Supreme Court. [146] The High Court is the first appellate court for capital cases, except for certain terrorism-related cases where the Indian Supreme Court is the first court of appeal. [147] In order to appeal to the Supreme Court, leave must first be obtained from the High Court or the Supreme Court. [148]

In the High Court, trials are presided over by a bench composed of at least two judges. The High Court can confirm a death sentence, commute the death sentence to another punishment, convict the defendant for another offense, order a new trial, or acquit the defendant. [149]

If a lower court does not impose a death sentence on an individual, the state can still appeal to the High Court to increase the penalty to a death sentence. There is no automatic right of appeal to the Supreme Court. [150] However, in cases where the High Court increases a defendant’s sentence to the death penalty after a lower trial court acquitted the defendant, the case may be appealed to the Supreme Court. [151] In these cases, the High Court or the Supreme Court must grant ‘special leave’ to file an appeal with the Supreme Court. [152]

In the military system, sentences passed by courts-martial under the Army, Navy, or Air Force cannot be appealed to a higher court. [153]

Death Penalty In Practice

Where Are Death-Sentenced Prisoners incarcerated?

Death row prisoners are incarcerated at a number of prisons. Death row prisoners have been incarcerated at Tihar Jail, Delhi, [154] Coimbatore Central Jail, [155] and Arthur Road Jail. [156] According to the Ministry of Home Affairs, by the end of 2011, Uttar Pradesh prisons held the most death row inmates (174 out of a total of 477). Karnataka prisons held 61 death row prisoners. Mahrashtra held 50 prisoners. Bihar held 37 prisoners. Delhi held 24 prisoners. Gujarat held 20 prisoners. Madhya Pradesh, Tamil Nadu and West Bengal prisons held 13 death row inmates each. Kerala prisons held 10 prisoners. [157]

Description of Prison Conditions

Conditions in Indian prisons are harsh and life-threatening. Prisons are severely overcrowded. [158] India’s prison system officially has a capacity to hold 332,782. As of the end of 2011, however, prisons held 372,926 inmates, over 112% of its overall capacity. Lakshadweep prisons reported the highest rate of overcrowding, with a capacity of 500%. [159] In order to reduce overcrowding, the government introduced the option of plea bargains in 2006. [160]

Indian prisons also do not provide sufficient food, potable water and medical care. Sanitation is also lacking. [161] Some prisons, such as the Mirzapur prison for female inmates, completely lacked medical facilities. A petition to the Mumbai High Court stated that Maharashtra prisons did not provide antiretroviral therapy to HIV positive prisoners. Diseases like tuberculosis and HIV/AIDS caused a large percentage of prison deaths. Moreover, there are significant reports of human rights violations in prisons. Between 2007 and 2009, 38,366 cases of human rights abuses were reported in prisons nationwide. [162]

At the end of 2011, 477 prisoners were awaiting execution throughout India’s prison system. [163] Most death row prisoners at Tihar Jail are kept in solitary confinement in high-security cells no larger than 10 sq. feet. Often security officials monitor death row inmates by closed-circuit cameras. Head counts in the morning and at night are common. Unlike other prisoners, death row inmates do not have to work in the prisons. They may subscribe to newspapers and magazines and have relatives bring books and food. Like other prisoners, they may be visited twice a week and are allowed a spending allowance provided by family and friends of no more than 750 rupees (about $15) per visit to use within the prison. [164]

Men and women were held separately. While convicted juveniles by law are required to be placed in rehabilitative homes, many were held with adults in prison. This is especially the case in rural areas. Pretrial detainees are not always separated from convicted prisoners. [165] Convicted women and women awaiting trial lived with their children within prison walls. As of the end of 2011, 383 women convicts lived with their 440 children, and 1,177 women awaiting trial lived with their 1,289 children in prison. [166]

Deaths in prison occur frequently. By the end of 2011, 1,332 deaths were reported, 1,244 natural and 88 unnatural. (According to the Ministry of Home Affairs, un-natural deaths “include suicide, murder by inmates, death due to firing, death due to negligence or excesses by jail personnel, etc.”) Most un-natural deaths (68 total by the end of 2011) were results of suicide, and other inmates murdered 8 prisoners. Of the total deaths, 43 were women (8 un-natural by way of suicide). [167]

Are there any known foreign nationals currently under sentence of death?

Yes. As of January 2013, some Pakistanis and Sri Lankans were reportedly awaiting execution on death row. [168] One of the most recent executions in 2012 was of Pakistani national Mohammad Ajmal Amir Qasab, the sole-surviving gunman of the 2008 Mumbai attacks that killed 166 people. [169]

What are the nationalities of the known foreign nationals on death row?

As of January 2013, some Pakistanis and Sri Lankans were reportedly awaiting execution on death row. [170]

Are there any known women currently under sentence of death?

By the end of 2011, there were 12 women awaiting execution on death row. [171] There have been no reports of executions of female prisoners since then. One woman’s death sentence was commuted in 2014 by the Supreme Court in Shatrughan Chauhan & Another vs. Union of India & Others. [172]

Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?

While India’s law prohibits the sentencing to death of juveniles, [173] this law has not always been followed in practice because of the difficulty of determining the precise age of individuals who were not registered at birth and thus lack birth certificates. Only about 50% of India’s population has been registered at birth. Additionally, incompetence and inexperience among defense attorneys leads to failures to bring offenders’ ages to the attention of courts. [174] In cases where the offender’s precise age could not be determined and where there was evidence that the offender was under 18 at the time of the crime, the Supreme Court has upheld death sentences. One individual, Amrutlal Someshwar Joshi, was executed on July 12, 1995 (Amrutlal Someshwar Joshi v. State of Maharashtra II) despite the possibility that he was under age 18 at the time of the crime.

Ramdeo Chauhan (alias Raj Nath Chauhan) was convicted and sentenced in March 1998 for the 1992 murder of four members of a family for whom he worked as a domestic servant. According to Amnesty International, there was strong evidence that Chauhan was 15 years old at the time of the crime, and as such, his conviction and sentencing were “unsound.” The Juvenile Justice Act requires that children under 16 years of age be tried by a Juvenile Court, which Chauhan was not. [175] In January 2002, the Governor of Assam commuted Chauhan’s sentence to life imprisonment in clemency proceedings. However, the Supreme Court struck down his decision in May 2009. The Court reasoned that the Governor’s decision was not reasoned and that it came after the National Human Rights Commission intervened to assist in Chauhan’s defense. In November 2010, the Supreme Court reversed its 2009 ruling, thus reinstating the Governor’s previous decision to award life imprisonment to Chauhan. [176]

The Gauhati High Court ruled in August 2011 that Chauhan was indeed a juvenile at 15 to 16 years of age at the time of the offense. [177] Medical tests to determine his age were conducted in 2003, five years after his initial imprisonment. [178] Because of his age at the time of the crime, the case would thus fall under the Juvenile Justice Act, 1986 and 2000. The maximum sentence for a juvenile under the Act is three years in an observation home, not in prison. After spending almost two decades behind bars, Chauhan is now a 34-year-old free man. [179] According to a 2012 media report, the Supreme Court stated that trying Chauhan as an adult was a “travesty of justice.” [180]

Another recent case also speaks to the possibility that juveniles often are imprisoned as adults despite safeguards in the Juvenile Justice Act. Ankush Maruti Shinde, who was under a death sentence confirmed by the Supreme Court in 2009, was recently determined to be a juvenile at the time of his offense. His sentence was commuted on July 7, 2012 after the Nasik Sessions Court ruled on his age. According to an Advocate of the Bombay High Court, “There are many more death-row prisoners like Ankush who are juveniles under law and entitled to its protection, but their cases have not been investigated.” [181]

Comments regarding the racial/ethnic composition on death row

At least three Tamils and one Sikh are awaiting execution on death row. [182] In February 2013, a Kashmiri Muslim militant, Afzal Guru, was executed after being convicted of plotting the 2001 attack on the Indian Parliament. His execution caused widespread anger and protests in Kashmir. [183]

Are there lawyers available for indigent defendants facing capital trials?

According to the Legal Services Authorities Act of 1987, indigent detainees have the right to legal aid. [184] The state provides free legal representation to indigent defendants. [185] Legal aid in capital cases is typically rendered by out-of-work or inexperienced attorneys, and funding is unavailable for expert testimony in the few cases where a court will agree to hear it. [186] According to a recent report, the case against Ajmal Qasab (or Kasab), the man executed in 2012 for his role in the 2008 Mumbai attacks, set a precedent of requiring that all accused persons have the right to legal aid from the time of arrest. Foreign nationals are also given this right. [187]

Are there lawyers available for indigent prisoners on appeal?

Yes. [188] For appeals pending before the Supreme Court, individuals with an annual income of less than 18,000 Rs. are entitled to free legal representation provided by the Supreme Court Legal Aid Committee. However, in order to take advantage of the availability of free legal counsel, the defendant must submit an application and any documents relevant to the case to the Secretary. After determining the eligibility of the applicant, the Committee agrees to provide legal aid to him or her. [189] Legal aid is typically rendered by out-of-work or inexperienced attorneys. [190]

Comments on Quality of Legal Representation

According to the Legal Services Authorities Act of 1987, indigent detainees have the right to legal aid. [191] The state provides free legal representation to indigent defendants. However, in practice, the quality of legal representation was often poor. [192] The typical defense strategy involves challenging errors in the prosecution’s case, not delivering an independent defense, and attorneys do not receive training in how to handle capital cases. [193] Attorneys may handle 5 cases in court per day. [194] Often, incompetent attorneys who do not face meaningful ethical sanctions for ineffective representation handle capital defenses. [195] In many capital cases, there have been reports of lawyers failing to present evidence of mental illness or disability, evidence that the accused was under the age of 18 at the time of the crime, or other relevant evidence that may act as mitigating factors such as personal, social, psychological information that may affect the court’s decisions in sentencing. This type of information provides the context for a case and the absence of such evidence during the trial can lead to unnecessarily harsh sentences. [196] Appellate attorneys may have difficulty determining where inadequacies in trial defense have led to inappropriate convictions and sentences, [197] and in some cases, such evidence was only discovered by the Supreme Court on appeal. [198]

Indigent defendants do not receive legal aid immediately after arrest or during remand and bail proceedings. As a result, those who are under arrest often do not know their rights, sometimes leading to mistreatment and forced confessions. [199] Moreover, under the anti-terrorism legislation, individuals can be detained by the police for long periods of time without legal counsel, and confessions made to the police during this time can be used as evidence. Moreover, there is no legal assistance in filing mercy petitions or writ petitions to the High Courts or Supreme Court after appeals have been exhausted. [200]

However, according to a recent report, the case against Ajmal Qasab (or Kasab), the man executed in 2012 for his role in the 2008 Mumbai attacks, set a precedent of requiring that all accused persons have the right to legal aid from the time of arrest. Foreign nationals are also given this right. [201]

Other Comments on Criminal Justice System

While the law prohibits torture, in practice, torture in police custody was widespread throughout India. In some cases, confessions of individuals who had been tortured were used in court as evidence, even in some capital cases. [202]

Moreover, almost 65% of the prison population consisted of remand prisoners. [203] In many prisons, pretrial detainees were not separated from convicted prisoners.

In addition, some juveniles were held in prisons in violation of the law. The law stipulates that anyone under the age of 18 must be held in rehabilitative facilities such as government homes for children. [204]

The courts in India are seriously overloaded, with judges handling hundreds of cases at a time. [205]

Decisions of International Human Rights Bodies

Decisions of Human Rights Committee

In its 1997 Concluding Observations regarding India’s compliance with the ICCPR, the Human Rights Committee recommended that India abolish the death penalty for juveniles and limit the offences punishable by death to the most serious crimes, with the aim of eventually abolishing the death penalty altogether. [206]

In a 1997 meeting of the HRC, Ashok Desai of India stated that there was a trend toward decreasing the use of the death penalty, and that there were far fewer executions recently than in the past. Mr. Desai did not know of an increase in the number of offenses punishable by the death penalty, and stated that while the law on narcotics and psychotropic substances did provide for the death penalty, the law had never been applied in practice. [207]

Decisions of Other Human Rights Bodies

In its 2000 Concluding Observations regarding India’s compliance with the Convention on the Rights of the Child, the Committee on the Rights of the Child noted that while in practice, individuals under the age of 18 are not sentenced to death, the law still allows juveniles to be given the death penalty. [208] The Committee also recommended that India exclude juveniles from the death penalty. [209] However, later that year in December 2000, the Juvenile Justice (Care and Protection of Children) Act was passed which abolished the death penalty for individuals under the age of 18 at the time of the crime. [210]

In 2008, the Human Rights Council did not make any recommendations concerning the death penalty in India in its Universal Periodic Review of human rights. [211]

In its 2012 Universal Periodic Review, the Human Rights Council recommended that India establish an official moratorium on executions and move towards abolishing the death penalty. The Council also recommended that India commute all death sentences into life imprisonment terms and ratify the Second Optional Protocol to the ICCPR. [212] However, India did not accept any recommendations regarding the death penalty. [213]

Helpful Reports and Publications

Amnesty International, India: The Death Penalty in India: A lethal lottery: A study of Supreme Court judgments in death penalty cases 1950-2006, ASA 20/007/2008, http://www.amnesty.org/ar/library/asset/ASA20/007/2008/en/16f59d0b-15fc-11dd-8586-f5a00c540031/asa200072008eng.pdf, May 2008.

The National Crime Records Bureau of the Ministry of Home Affairs publishes an annual report compiling prison statistics, including information on death row inmates:
National Crime Records Bureau, Ministry of Home Affairs, Prison Statistics India 2011, http://ncrb.gov.in/PSI-2011/Full/PSI-2011.pdf, Sep. 3, 2012.
http://www.amnestyusa.org/document.php?id=ENGUSA20080502002.

Additional notes regarding this country

None.

References

The Death Penalty Worldwide database was created in partnership with the World Coalition Against the Death Penaltyand with financial support from the European Union.